The big story in this year's
scholarship of the Second Amendment has been the publication of
Michael Bellesiles' highly-publicized Arming America, which
claims that early Americans didn't like guns and rarely owned them.
But as
scholars studyArming America closely — by actually checking out the footnotes — they are finding
that the book is one of the most audacious hoaxes since David Irving
re-invented holocaust history. Many of Bellesiles' sources simply do
not say what he claims, and a good number directly contradict his
thesis, leaving one hungry for scholarly rebuttal.

For that, one can look back two years, when author Stephen Halbrook
asked: Properly interpreted, should the Second Amendment be
enforceable against the states? Halbrook posed this question in Freedmen, the Fourteenth Amendment, and the Right to Bear Arms,
1866-1876. To be sure, when he writes that "X happened on July 15,
1867," you can read the source cited in the footnote, and find that X
did indeed happen.

While most scholars, and an increasing number of courts, today
recognize that the Second Amendment guarantees an individual's right
to keep and bear arms, this does not necessarily guarantee the end of
the gun-prohibition movement. According to most judicial
interpretation, the Second Amendment is a limit only on the federal
government, not the states. Forty-four states have a right to arms in
their state constitution. But in the six that don't (including
California, New York, Maryland, and Minnesota) plus Massachusetts
(where the state supreme court has nullified the state constitution's
right to arms), there is no explicit constitutional protection for the
right to arms.

So
scholars and citizens who want to know the real history of the Second
Amendment would be well-advised to skip Bellesiles and instead read
Halbrook's Freedmen. Halbrook is a meticulous scholar, and this
book definitely answers the question of whether the Fourteenth
Amendment was intended to make the Second Amendment into a limit on
state and local government.

Regarding the application of the Bill of Rights to states, on one side
stand the full incorporationists, such as the late U.S. Supreme Court
Justice Hugo Black. They argue that the Fourteenth Amendment imposes
all the guarantees of the Bill of Rights on the states. (Except for
the Tenth Amendment, which is a protection of state government power
against federal usurpation.) Full incorporationists argue that the
authors of the "privileges and immunities" clause of the Fourteenth
Amendment intended to reverse the Barron v. Baltimore(1833) decision of the U.S. Supreme Court — which had said that the
Bill of Rights restricts only the federal government. (The Privileges
and Immunities clause of section 1 of the Fourteenth Amendment
mandates: "No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States.")

The immediate goal of the Fourteenth Amendment's sponsors was to
protect southern blacks, most of them recently emancipated slaves, in
the aftermath of the Civil War. But in the first three decades after
the Fourteenth Amendment was ratified, a divided Supreme Court refused
to apply any of the Bill of Rights to the states. The Court
majority essentially nullified the "Privileges and Immunities" clause
of the Fourteenth Amendment.

Starting with Chicago B. & Q. R. Co. v. Chicago(1897),
and dominant since the New Deal, is a doctrine called selective
incorporation. Instead of using the "privileges and immunities"
clause, this school of thought uses the "due process" clause as a
basis for protecting what it calls "substantive" liberties from state
infringement. (This clause from section 1 of the Fourteenth Amendment
says: "nor shall any State deprive any person of life, liberty, or
property, without due process of law.") Under this theory, the Supreme
Court picks what parts of the Bill of Rights apply to the states.

Over time, and especially since
Gitlow v. New York(1925), liberals have adopted this theory of
selective incorporation based on due process, seeking to protect
individuals from state and local governments. Selective incorporation
is a convenient way for jurists to cherry-pick the Bill of Rights. As
Halbrook observes, "The reasoning in these opinions is a priori,
requiring only a sentence or two. No case refers to the intent of the
Fourteenth Amendment's framers, even though that intent supported
incorporation" (p. 185). As Justice Hugo Black pointed out, and as
Halbrook details, there is an immense body of historical evidence that
shows that the principal authors of the Fourteenth Amendment — Rep.
John Bingham and Senator Jacob M. Howard — intended it to provide full
incorporation.

Halbrook's book demonstrates that many proponents and opponents
clearly understood that the Fourteenth Amendment would impose the
first eight amendments as limitations on the states. Halbrook does an
impressive job of gathering evidence not only from the speeches of
Bingham and Howard before, during, and after ratification of the
Fourteenth Amendment, but from a variety of other members of Congress,
from newspaper coverage, and from law books of the day.

Even members of today's "selective incorporation school will have to
admit after reading this book that Congress meant for the Fourteenth
Amendment to include the Second Amendment's guarantee of an individual
right. Senator Samuel Pomeroy of Kansas, one of the proponents of the
Fourteenth Amendment, articulated what he called three "safeguards of
liberty . . . which are indispensable":

1. Every man should have a homestead, that is, the right to
acquire and hold one, and the right to be safe and protected in that
citadel of his love.

2. He should have the right to bear arms for the defense of
himself and family and his homestead. . . .

3. He should have the ballot. (p. 26)

Halbrook shows how Congress heard testimony concerning the disarming
of freedmen and white Unionists, which enraged Republicans.
Conversely, opponents of the Fourteenth Amendment criticized
Republicans for hypocrisy in supporting the Fourteenth Amendment,
since military authorities in a number of southern states had disarmed
whites, while allowing blacks to form militias. Some western members
of Congress, while supportive of guarantees of the right to keep and
bear arms for freedmen, "wished to exclude Indians and Chinese from
citizenship. Williams of Oregon argued that if Indians were citizens,
then state laws that prohibited whites from selling arms and
ammunition to Indians would be void" (p. 13).

The Fourteenth Amendment grew out of earlier congressional efforts to
use statutes to protect civil rights in the South. The most notable of
these was the Freedmen's Bureau Bill. The bill explained that the
"full and equal benefit of all laws and proceedings for the security
of person and estate, including the constitutional right of bearing
arms" was in need of protection against state and local governments
(pp. 16-17). That "the constitutional right of bearing arms" needed to
be protected against state government infringement is plainly
incompatible with Handgun Control, Inc.'s theory that the Second
Amendment guarantees a right of state governments, not a "right of the
people."

Debate and reports associated with the Civil Rights Act of 1871
pointed out that the Fourteenth Amendment had given Congress the power
to protect "the right in the citizen to 'keep and bear arms.'" The
Civil Rights Act further provided that "whoever shall take them away,
by force or violence, or by threats and intimidation, the arms and
weapons which any person may have for his defense, shall be deemed
guilty of larceny of the same. . . ." (p. 122).

The strongest part of the anti-incorporationist argument has been the
southern state conventions which ratified the Fourteenth Amendment.
These conventions tended to discuss the Fourteenth Amendment in only
limited terms — that it would allow blacks to testify in court, to
sign contracts, and so forth. Of course it's possible that since
Congress refused to readmit the southern states to the Union until
they ratified the Fourteenth Amendment, southern proponents of the
Amendment may have tried to make the Amendment appear insignificant.

Halbrook advances the debate by pointing out that the southern states,
as they adopted post-secession state constitutions, typically
protected the right to arms, sometimes more expansively than in the
ante-bellum years. Some states, for example, had limited the right to
the free or white population.

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